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Criminal Law
University of Mississippi School of Law
Hoffheimer, Michael

Criminal Law

Prof. Hoffheimer, Spring 2014

What are the crimes? What are the differences between the crimes? What are the defenses to the crimes?

Focus on the elements of the crime and authorities governing the conduct.

Three jurisdictions: common law, model penal code, Mississippi law

I. Setting the Stage

a. Pre-Trial:

i. Probable cause: substantial chance that the suspect committed the crime; necessary for an arrest based on Due Process Clause.

ii. Preliminary hearing: within two weeks of arrest a judge determines if arrest was justified (probable cause) to send to grand jury

iii. Indictment: grand jury hears prosecution in secret, non-adversarial hearing without Δ present to decide whether to charge and bring indictment or hold ignoramus

– If indicted, then charged and arrested or arraigned

iv. Jeopardy attaches at swearing of the whole jury or when first witness is sworn in

v. Corpus delicti: (body of crime) material fact or substance upon which a crime has been committed; principle that a crime must have been proven to have occurred before conviction

b. Proof beyond a reasonable doubt:

i. In re Winship established that in order to provide concrete substance for the presumption of innocence as required by the Due Process Clause the prosecutor must persuade the factfinder beyond a reasonable doubt of every fact necessary to constitute the crime charged

ii. Policy considerations: protect individuals’ good names and freedom; moral force of the law

iii. Definition: juror’s mind should be in a subjective state of near certitude; quantification leads to confusion or dilution of the state’s burden

– “Moral Certainty;” “Firmly Convinced;” “No Waiver or Vacillation;” “No Real Doubt;” “Thoroughly Convinced (French)”

c. Enforcing the presumption of innocence

i. Owens v. State (1992) MD: drunk in the driveway

– A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.

– Whether there were any attendant and ancillary circumstances to render less likely the hypothesis of innocence?

– Totality of circumstances are inconsistent with a reasonable hypothesis of innocence.

d. Jury Nullification

i. State v. Ragland (1986) NJ

– The jury’s power to acquit despite overwhelming proof and their belief in guilt is not a precious attribute to the right to trial by jury.

– Only the legislature has the power to correct unfair laws and injustice in specific applications.

– Juries are not entitled to nullification instructions

ii. “Protection from Oppression;” “Sabotage of Justice (Racial/White);” “Victimless Self-Help (Racial/Black);” “Perverts Trier of Fact”

II. Principles of Punishment

a. Theories of Punishment: What is the aim of the criminal justice system? To whom may punishment be applied and in what manner and degree?

i. Retributive: punishment is justified because people deserve it (backwards)

ii. Utilitarian: punishment is justified because of the useful purpose it serves

– General deterrence: knowledge that punishment will follow crime deters people from committing crimes

– Individual deterrence: imposition of punishment deters offenders from repeating crimes

– Incapacitation and risk management: put criminals out of general circulation

– Reform: rehabilitate the criminal so that his desire to commit crimes will be lessened

b. Penal Theories in Action

i. The Queen v. Dudley and Stephens (Common Law) (1884): sea-drift cannibals

– Necessity Defense: Necessary killings to save one’s own life are not murder only if made by repelling an illegal violence made against one’s self.

– There is no absolute or unqualified necessity to preserve one’s life.

ii. MPC § 3.02. Justification Generally: Choice of Evil

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and

(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

a. Comment to § 3.02:

i. The Model Code rejects any limitations on necessity cast in terms of particular evils to be avoided or particular evils to be justified.

ii. It would be particular unfortunate to exclude homicidal conduct rom the scope of the defense.

iii. Conduct that results in taking life may promote the very value sought to be protected by the law of homicide, the sanctity of life.

iii. Knight v. State (Miss. 1992): hit-and-“run” in wrong neighborhood

– Law of necessity: Where a person reasonably believes that he is in d


a. the omission is expressly made sufficient by the law defining the offense; or

b. a duty to perform the omitted acts is otherwise imposed by law.

(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

IV. Mens Rea

a. Broad meaning: guilty mind, vicious will, immorality of motive, morally culpable state of mind

b. Narrow (elemental) meaning: mental state Δ must have had with regard to the social harm elements set out in definition of the offense

c. United States v. Cordoba-Hincapie (Common Law) (NY 1993)

i. Mens rea is a broad network of concepts; look to wrongdoer’s mind for propriety and grading of punishment; an act does not make the doer guilty unless the mind be guilty; intent must be criminal

d. Regina v. Cunningham (Common Law) (UK 1957)

i. “Malice” requires either (a) an actual intention to do the particular kind of harm that in fact was done or (b) recklessness as to whether such harm should occur or not.

e. Intent

i. People v. Conley (Common Law) (IL 1989)

– Intentionally: when his conscious objective or purpose is to accomplish the result or engage in conduct described by that statute defining the offense

– Knowingly: when he is consciously aware that the result of his conduct described by the statute defining the offense is practically certain to be caused by his conduct

– Common-Law intent: In the context of result crimes, intent is defined to include not only those results that are the conscious object of the actor but also those results that the actor knows are virtually certain to occur from his conduct.

a. Transferred intent: when Δ intends to cause harm to one person but accidentally causes it to another, courts typically assign criminal liability to Δ and Δ’s guilt is exactly what it would have been had the blow fallen upon the intended victim instead.

b. General intent: broad “culpability” definition.

c. Specific intent: narrow “elemental” definition.